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Boarderlass wrote:Hi there, I've been trawling through the forum and not found any situation quite like mine and hoping someone can give me some advice.
My partner (Irish) and I (New Zealander) live in the UK and received our EEA residence cards in NOV 2006 at that time we had been been together for 7 years but not married. We were married in JAN 2008 but unfortunately will be getting a divorce. We have not lived together since NOV 2008.
What I want to know is that while I understand under EEA regulation we are still seen as 'married' we have not lived together since about NOV 2008. I am wondering if this situation still makes me eligible for Right of Residence? I understand the rules state that we must be married for three years one of those in the UK. Therefore I meet that criteria but only if you are still considered to be 'married' while living apart i.e separated.
Questions are:
- Am I eligible for Right of Residence?
- Will I need to provide proof of living together - because as a married couple for less than a year, but had a nine year relationship?
- Should I just see out the 5 years (NOV 11) and apply for an EEA4 - our split was amicable so potentially I could wait to be divorced
Hoping you can help!
Thank you.
If the decree absolute is issued before the EEA national has been outside the UK for over 6 months, then it follows that the EEA national would still be exercising her treaty rights if within the 6 month period. The only thing is that exercising treaty rights consists of 2 parts, therefore, whilst:Hubbitten wrote:hi sorry this is not reply but a question arising from this situation in which i m also in , what if EEA national leaves UK before this period or decree of divorce.???????
larswell wrote:Hi! I was wondering if someone could help me with my questions, b4 i ask ill just quickly explain what my situation is ...
married to a europen in jan 2007, divorced in nov 2010 ( 3 years and 10 months)
been living in the uk since jan 2007
So according i believe i can apply for right of resident and have got a lawyer to sort out everything for me
I also believe when they issue the right of residence it'll expire in 5 years from the issue date.
Do I have to wait for this visa to expire for me to apply for permanent residence? Or as I have already been living here for over 4 years I only have to wait until it reaches 5 years to apply for permanent residence?
And if I dont have to wait for my right of residence to expire to apply for a permanent residence, which form should use? There seems to be no information about my situation on the homeoffice website
THANKS A LOT FOR UR HELP GUYS!!!
Code: Select all
married to a europen in jan 2007, divorced in nov 2010 ( 3 years and 10 months)
been living in the uk since jan 2007
larswell wrote:First of all thank you very much for taking the time to reply to my questions! You have been very clear!
The lawyer who is taking care of my case said that I dont need private health Insurance. But everyone here seems to say I should have just in case the HomeOffice requires it!
Would you say getting private health insurance is a must?
Thanks very much again!!!
mcovet wrote:It's 5 years of living "in accordance with the 2006 Regulations" (I think it's Reg 15). So, Jan 2012, provided you can prove that you actually did retain right of residence (i.e. your EEA was living and exercising treaty rights from the time you initiated the divorce until the decree absolute). The evidence could be difficult to obtain if your EEA is non-cooperative.
Also, from Nov 2010, YOU should do what would be classed as exercising treaty rights if it were an EEA national (i.e. work, be self-sufficient + private medical insurance etc.)
You are also right that the UKBA does NOT have a separate form or guidance for those retaining right of residence.
It seems that if you are applying to Retain your rights (confirm that after divorcing you are still eligible to remain in the UK- not compulsory, can go straight for PR application, but would help if did this first) you would use the EEA2 form.
If you then apply for PR (whether you first applied to retain the right of residence or not), you would use EEA4.
I agree that taking into account the fact that so many people apply to retain rights, they COULD have come up with a separate application form to make it easier and avoid case workers issuing the same standard letters to divorced non-EEAs as before the divorce.
larswell wrote:Hi! I was wondering if someone could help me with my questions, b4 i ask ill just quickly explain what my situation is ...
married to a europen in jan 2007, divorced in nov 2010 ( 3 years and 10 months)
been living in the uk since jan 2007
So according i believe i can apply for right of resident and have got a lawyer to sort out everything for me
I also believe when they issue the right of residence it'll expire in 5 years from the issue date.
Do I have to wait for this visa to expire for me to apply for permanent residence? Or as I have already been living here for over 4 years I only have to wait until it reaches 5 years to apply for permanent residence?
And if I dont have to wait for my right of residence to expire to apply for a permanent residence, which form should use? There seems to be no information about my situation on the homeoffice website
THANKS A LOT FOR UR HELP GUYS!!!
Policy is to revoke or to refuse to issue / renew a Residence Card in the event of divorce / dissolution of civil partnership, or when there is evidence that the EEA national has left the United Kingdom, UNLESS the non-EEA qualifies for a retention of a right of residence.
If the marriage or civil partnership has lasted for at least three years immediately before the initiation of proceedings for divorce, annulment or dissolution, and the parties to the marriage or civil partnership had resided in the United Kingdom for at least one year during the duration of the marriage or civil partnership, then the third country national retains a right of residence if:
34
(a)
they are pursuing activity which would make them a worker or a self-employed person if they were an EEA national;
(b)
they are a self-sufficient person – including a retired person;
(c)
they are the family member of a person in the United Kingdom who is either a worker, self-employed, or is a self-sufficient person.
Not generally and this becomes clear when you read the other subsections. Children and maybe domestic violence can be a reason. 6 months absence mean for the UKBA temporary absence, i.e. no intentions to leave the UK.jackEM wrote:it seems from this that after this condition even if the EEA National has left the Uk, Non-EEA National can retain the right.
There is no such thing as permanent residence card or residence card on the basis of divorce. What gives you the right to apply for permanent residence/residence card is your wife's exercising treaty rights and living in the UK. If she lives and works in another country, she is not exercising the Treaty rights in the UK. If she is not, neither are you. In short, a third country national is exercising Treaty rights in a given country only if he/she is in a given country with his/her EU spouse who is exercising Treaty rights.brummie123 wrote:Our solicitor applied for permanent residence/residence card on the basis that divorce with wife who is EEA national. We lived together in the UK since 2005 until Nov 2009. She left the UK then and returned to her home country.
I disagree with the statement. There are two vital trigger points here:Again, the point you seemed to overlook is it does not matter what you are doing in the UK
Thank you very much. I overlooked that one. Of course, since nonEEA national is applying for an independent residence card, he/she has to exercise treaty rights on his own.bobobo wrote:[
I disagree with the statement. There are two vital trigger points here:
1. The EEA Notional should be exercising rights in the UK especially during the initiation to the grant of Decree Absolute.
2. To Retain Rights or for PR the Non EEA national will have to prove that they have been exercising treaty rights as well just like the EEA national would have done.
See Section 6.2 Retained Rights of residence
http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary